The Building (Scotland) Regulations 2004, as amended, (the "Regulations") set out the technical requirements applicable to building work in Scotland with a view to protecting the public interest. Guidance for complying with the Regulations is set out in the two Technical Handbooks – the Domestic and Non-Domestic versions. Complying with the guidance in the relevant Technical Handbook provides a contractor with evidence that he has complied with the requirements of the Regulations.
One area of the Technical Handbooks which has been the subject of a number of recent changes – following the tragic events of the Grenfell Tower fire – is the guidance regarding fire safety. Recent versions of the Technical Handbook have tightened these requirements. We have seen the "dual standards" route, where materials used in construction could meet either British Standards or European Classifications, removed – now only the European Classifications remain. The 2020 editions of the Technical Handbook have now signposted another major change. Earlier versions of the Technical Handbook provided that BS 8414/BR135 tests and assessments could be used as "alternative guidance" to show compliance with the Regulations. This provision has now been removed, meaning that the only specified route in the Technical Handbook for buildings taller than 11m to demonstrate compliance with the Regulations is for external walling materials to have a European Classification of A2 or better.
Although no longer referred to in the Technical Handbook, for the moment, it is still possible for applicants to propose a solution reliant on BS 8414/BR135 in their application for a Building Warrant, but any application of this type will be subject to stringent analysis. Any application will require to be notified to the Scottish Government Building Standards Division and the verifying local authority will require confirmation that the system tested under BS 8414/BR135 is properly representative of the system which is to be installed and that appropriate risk management protocols are in place to ensure compliance during construction. Also, whilst it should be noted that the Handbook describes this as an "interim" measure, the Scottish Government intends to put the issue out to consultation in June 2021 with conclusions to be reached by the end of the year. It therefore remains to be seen whether the interim change to the guidance will become permanent, narrowing the path to compliance even further.
The provisions of the 2020 Technical Handbooks apply to all projects where a building warrant was submitted on or after 1 March 2021 and to building work which does not require a warrant commenced from that date. The stricter guidelines are likely to have an impact on the construction of new projects going forward, either because of an increase in the cost of materials to comply with the higher specification requirements or additional resource required to comply with the stricter BS 8414/BR135 pathway. However, only time will tell whether this will spill over into disputes, particularly where projects have been tendered (and tenders have been accepted) before 1 March 2021, but Building Warrant has not been applied for until after that date.
If you would like to discuss this issue further, please contact our Eric Johnstone – eric.johnstone@brodies.com
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